Procedural gaffe allows snoozing guard to escape firing

March 9, 2016

Employment Law BookA strong case for discharging an employee for sleeping on duty was derailed by the agency’s failure to afford him due process.

A Florida Department of Corrections Officer with more than six years’ service was discharged for two separate incidents of sleeping on the job while assigned to supervise inmates and visitors at a prison’s “visiting park.” The agency also cited his prior record of discipline for absenteeism and unbecoming conduct.

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In challenging the grievant’s termination the union argued that he was denied due process. Specifically, his accuser, a sergeant, did not timely submit her report of the first incident to the warden and the grievant was not provided with that report until almost two months after the purported misconduct nor afforded the opportunity to respond in writing. As for the second incident, the agency’s case “has gaping holes,” asserted the union, and management failed to conduct a full and fair investigation e.g. it never took witness statements.

The arbitrator ruled that termination was too severe.

While crediting the sergeant’s testimony that she observed the grievant sleeping on the job on two separate occasions, the arbitrator concurred with the union that the grievant was denied due process. Specifically, by not being given timely notice of the first incident report the grievant was unable to respond in writing “at a time when his memory of the event would have been fresh,” held the arbitrator, emphasizing that such procedural lapse was more than “harmless error” where it involved an employee’s termination.

Accordingly, the arbitrator, while finding that evidence “as a whole presents a convincing case of sleeping on the job” and admonishing the grievant that he “is on express notice that any further incidents of sleeping on the job will result in his termination,” directed his reinstatement without back pay but with seniority intact.

State of Florida, Department of Corrections and IBT Local 2011, 44 LAIS 82, 2015 WL 6473091